December 10, 2013

Senate Confirms Patricia Millett to D.C. Circuit

Patricia Millett's confirmation today to a key federal appeals court in Washington marked the start of a new streamlined approach to judicial nominations on Capitol Hill. The move also marked the beginning of a period of change at the court—and at the appellate practice at the law firm she will leave behind.

The Senate voted 56-38 to confirm Millett, a co-leader of Akin Gump Strauss Hauer & Feld's appellate and U.S. Supreme Court practice, to fill one of three vacancies on the U.S. Court of Appeals for the D.C. Circuit. The close vote wasn't a reflection on her qualifications, which were never challenged during the nomination process.

Millett has argued 32 times before the U.S. Supreme Court, the second most for a woman advocate, and lawmakers from both parties said she had the credentials and experience to serve on a bench that's often considered the nation's second highest court.

Republicans objected to the Democratic-led effort to change the Senate rules on filibusters in November, after months of political fighting over the nomination of Millett and two others to the D.C. Circuit. Two Republicans, Sen. Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska), voted with Democrats for Millett. Six senators did not vote.

Without that rule change, the vote might not have happened. Similar confirmation votes for two other pending nominees to the D.C. Circuit—Georgetown University law professor Cornelia "Nina" Pillard and U.S. District Judge Robert Wilkins in Washington—are expected to come before the end of the year.

Although Senate Majority Leader Harry Reid (D-Nev.) has not set a vote yet, Wilkins and Pillard are expected to win approval and fill the 11-member D.C. Circuit panel for the first time in years.

"I'm confident she will serve with distinction on the federal bench," Obama said in a written statement about Millett today. Obama has placed one other person on the D.C. Circuit—former O'Melveny & Myers partner Sri Srinivasan, who recently served as a top lawyer in the solicitor general's office at the U.S. Department of Justice.

The idea of a full, 11-judge D.C. Circuit could be foreign for the attorneys who practice in the high-profile court, where rulings in the regulatory arena—including securities, communications and the environment—often carry national significance. The last influx of judges came during the George W. Bush administration.

Jon Hacker, the chair of the Supreme Court and appellate practice at O'Melveny and Myers, said he expects a period of adjustment as the court feels out a new dynamic. That goes for the private and regulatory agency attorneys who practice before the D.C. Circuit—and the court itself.

"I don't expect the dynamic will feel that different, but these are new judges to the court and they're going to be establishing their own record, and agencies will try to determine whether they'll see things differently," Hacker said.

"Change has been slow to come to the court and now we're talking about something coming virtually overnight,"Hacker said. "I don't think any of these three judges will be crusaders on anything before the court. I think they will apply the law equally."

Unlike the U.S. Supreme Court, attorneys can't predict at the outset of a case which judges will be on a D.C. Circuit panel, Hacker said. And it's hard to use the politics of a president to predict a judge's deference to agencies. (The identities of D.C. Circuit panels are known in advance of argument, however.)

The confirmation of the three judges would shift the balance of active judges from an even split—four Republican appointees and four Democratic appointees—to a 7-4 advantage for Democrats. Republican-appointed judges would have a 9-8 advantage when senior judges—who still sit on hearing panels and write opinions—are counted.

Republicans in recent months accused the Obama administration of trying to "stack" the D.C. Circuit to make it easier to push the president's domestic agenda. They also argued the caseload did not justify adding any more judges.

At Akin Gump, the transition planning started almost year ago, said Kim Koopersmith, the firm's chairperson. In August the firm hired Pratik Shah, an assistant to the solicitor general with 13 Supreme Court arguments under his belt, as co-head of the Supreme Court practice.

The idea has been to be able to maintain a very high level of practice so it is a seamless transition for clients, Koopersmith said. The reception from clients has been positive, Koopersmith said, and Shah has gotten a high degree of support from firm partners and Millett. Shah, an Akin partner, has already argued in the U.S. Court of Appeals for the Eighth Circuit and this week filed an amicus brief with the Supreme Court.

Akin Gump expects to continue to invest in the firm's appellate practice. "Pratik's credentials were pretty amazing and we think we’re going to have additional opportunities as well," Koopersmith said.

"We have worked with Pattie, probably for the better part of a year, with an eye always towards the possibility that there might be other opportunities she might be worthy of undertaking," she said. "So we have kept an eye on how we are always going to be able to move this practice forward, and with some expectations in this area that people do move on to other positions."

The perception of any law firm is built by different things, but a former partner sitting on the D.C. Circuit says a lot about the firm and will help attract clients, said Tom Goldstein, who created the Supreme Court Practice at Akin Gump in 2006. (Goldstein is a now a name partner in Goldstein & Russell.)

"You hate to lose a great lawyer, but if you're going to this is the way to do it," Goldstein said. "And the firm was completely committed to the effort. They love Pattie but their legislative team was really involved in the process of making sure she got a fair hearing."

Millett and her family gathered with Akin Gump partners at the firm this morning to watch the vote. Koopersmith spoke with Millett yesterday. "I said to her, I only have a few more hours before I have to call you 'your honor,'" Koopersmith said.